Dismissed

All India Kabadi Mazdoor Mahasangh v. New Delhi Municipal Council and Ors.

Delhi HC18 Oct 2016W.P.(C)/7210/2016

Case brief

AI extract

What is this about?

The Court rejected a writ petition filed by a rag pickers' trust seeking directions under the Solid Waste Management Rules, 2016, holding that it was filed against the wrong respondent based on a case of mistaken identity and was legally premature as the deadline to frame bye-laws had not yet expired.

What did the court decide?

The writ petition seeking directions to formulate a scheme and restrain demolition was dismissed as it was liable on grounds of mistaken identity and prematurity.

All India Kabadi Mazdoor Mahasangh Vs… — Constitutional and Fundamental Rights | Delhi HC (2016)

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$~21

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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- W.P.(C) 7210/2016 & CMs No.29691/2016 and CM No.35854/2016 ALL INDIA KABADI MAZDOOR MAHASANGH..... Petitioner Through : Ms. Amisy Shukla with Mr. Shakti Vardhan, Advocate

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versus

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NEW DELHI MUNICIPAL COUNCIL AND ORS..... Respondents Through : Mr. Sanjay Jain, ASC with Ms. Rhia Verma and Ms. Bani Dixit, Advocates for R-1/NDMC Mr. Shatrajit Banerji, proxy counsel for Mr. Gautam Narayan, ASC for R-2. Ms. Monika Arora, CGSC with Mr. Kushal Kumar, Advocate for R-3.

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CORAM:

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HON'BLE MS. JUSTICE HIMA KOHLI

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O R D E R

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% 18.10.2016

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The present petition has been filed by the petitioner/Trust praying inter alia for directions to the respondent No.1/New Delhi Municipal Council, the respondent No.2/Govt. of NCT of Delhi and respondent No.3/UOI for proposing a Scheme in terms of the Solid Waste Management Rules, 2016 (in short ‘the Rules’ ) (Annexure P-3). Further, directions have been prayed for to the respondents restraining them from demolishing the garbage houses in the jurisdiction of the respondent No.1/Council till a Scheme is formulated in terms of the captioned Rules. Lastly, the petitioner seeks directions to the respondents to conduct a survey of all the rag pickers/waste pickers as defined in the Rules.

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The petitioner is stated to be a registered Trust working for the

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upliftment and benefit of rag pickers all over the country and states that the rag pickers in the jurisdiction of the respondent No.1/Council are also the members of the Trust. The present petition is predicated on the ground that rag pickers are being harassed and threatened by the respondents. It has been averred in the petition that in January, 2016, officials of the respondent No.1/Council had announced that they have launched a Scheme, whereunder beggars and rag pickers will manage toilet complexes in its jurisdiction and the Department of Environment Management Services (DEMS) Committee of the respondent No.1/Council shall provide institutional help in forming cooperatives of beggars and rag pickers and the said cooperatives will be assigned the task of running the toilet blocks. In support of the said submission a copy of the newspaper article published in the Indian Express in January, 2016 has been enclosed with the present petition as Annexure P- 2.

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It has been further averred in the petition that the Scheme proposed by the respondent No.1/Council was never formulated and the sole beneficiaries of the failure on the part of the respondent No.1/NDMC to roll out any Scheme are private companies who would be involved in recycling of solid waste. It is claimed that such an act on the part of the respondent No.1/Council amounts to dereliction of its obligations under the Rules and violation of Articles 14 and 19(1)(g) of the Constitution of India, leading to a grave threat to the only source of livelihood that is available to waste pickers/rag pickers.

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Learned counsel for the petitioner contends that the respondents have not laid down any roadmap or plan in respect of the Scheme launched by

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W.P.(C)7210/2016

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them in any of the public portals including the website of NDMC and no survey has been conducted by them with regard to the rag pickers already working on the dhalaos on an informal basis.

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On 16.8.2016, when the petition came up for admission, appearance was entered on behalf of the respondents and as time was sought to obtain instructions, the case was adjourned to 17.8.2016. On the said date, time was sought by the counsel for the respondents to file a counter affidavit and counsel for the respondent No.1/Council had stated that no dhalao shall be demolished till the next date. While adjourning to 27.9.2016, it was directed that till the next date of hearing, the respondent No.1/Council shall not demolish the dhalaos meant for collection and storage of garbage, located within its jurisdiction.

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A counter affidavit has been filed by the respondent No.1/Council along with an application for seeking vacation of the interim order dated 17.8.2016. A preliminary objection has been taken in the counter affidavit to the effect that the ostensible cause of action for filing the present petition is a newspaper report that the petitioner has relied upon, particularly the one filed as Annexure P-2, which in fact does not relate to the respondent No.1/Council, but relates to the North Delhi Municipal Corporation.

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Mr. Jain, learned ASG appearing for the respondent No.1/Council states that it has been clearly stated in the counter affidavit that there is no Scheme by the name of “Atm Nirbhar” launched for providing institutional help in forming cooperatives of beggars and rag pickers and nor is there any

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officer in the respondent No.1/Council by the name of Mr. Vijay Prakash Pandey, described in the newspaper article as the Chairman of the Department of Environment Management Services (DEMS) Committee of the respondent No.1/NDMC. He states that the respondent No.1/Council does not have any department by the name of Environment Management Services and nor has it ever published any advertisement or proposal in respect of the captioned Scheme as contended by the petitioner. It is submitted that this is quite apparently a case of mistaken identity based on which the petitioner has proceeded to implead New Delhi Municipal Council as respondent No.1, whereas they appear to be aggrieved by the action of North Delhi Municipal Corporation. The locus standi of the petitioner/Trust to institute the present petitioner has also been questioned by the respondent No.1/Council on the ground that the present petition has not been filed as a Public Interest Litigation and further, that there is no licence or agreement between the petitioner/Trust and the respondent No.1/Council for solid waste management.

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On merits, it has been averred on behalf of the respondent No.1/Council that it had invited tenders for awarding the work of construction, operation and maintenance of Public Toilet Utilities (PTUs) and sanitation staff to concessionaires on Design Build Operate and Transfer basis. In view of the said decision to float tenders, the respondent No.1/Council had decided to demolish the existing dhalaos (garbage stations) for constructing PTUs for the public and Roll Call Shelters for sanitation staff. It is submitted that respondent No.1/Council has decided to demolish 28 existing garbage stations in its jurisdiction and convert them

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into PTUs/Community Toilet Utilities (CTUs) and out of the said 28 dhalaos, two dhalaos at Rafi Marg and Copernicus Marg have been demolished and five dhalaos have been handed over to an NGO by the name of Chintan, for segregation of e-waste/plastic waste, etc. The details of the manner in which the respondent No.1/NDMC has decided to collect, transfer and dispose of garbage has been detailed in para 4.4 of the counter affidavit.

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Mr. Jain, learned ASC submits that as a matter of policy, respondent No.1/Council has adopted the decentralized waste disposal approach and it is in the process of drafting its Bye-laws on sanitation. The decentralized waste processing is carried out by the respondent No.1/Council at a Waste To Energy Plant situated at West Kidwai Nagar. That apart, the respondent No.1/Council is also planning to establish a bio-methanation plant to generate bio-gas on a public private partnership basis.

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Lastly, learned ASG argues that the contention of petitioner that the respondent No.1/Council has not complied with the rules by preparing a solid waste management plan, is misconceived. To substantiate the said submission, he refers to Rule 15 of the Rules which prescribes the duties and responsibilities of the local authorities and village Panchayats of census towns and urban agglomerations, who have been directed, amongst others, to frame Bye-laws incorporating the provisions of the Rules within one year from the date of notification of the said Rules and ensure timely implementation. The Rules in question were notified vide notification dated 8.4.2016 and the period of one year reckoned therefrom shall expire on 7.4.2017. The present petition is therefore stated to be pre-mature inasmuch

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as the period of one year available to frame the relevant Bye-laws, has yet to expire.

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It is pertinent to note that the counter affidavit was filed by the respondent No.1/NDMC as long back as on 23.9.2016, but till date no steps have been taken by the petitioner to file a rejoinder thereto. The Court is sceptical about the submission made by learned counsel for the petitioner that Mr. Shashi Bhushan, Secretary of the petitioner/Trust was unable to contact her for drafting the rejoinder to the counter affidavit when the very same person had apparently contacted and instructed her to draft a contempt petition claiming inter alia that the respondents are in violation of the interim order dated 17.8.2016. Pertinently, the contempt petition was filed on 6.10.2016 and it is listed at Sr. No.24 in today’s cause list.

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In any case, having perused the averments made by the respondent No.1/NDMC in the counter affidavit and on hearing learned counsels for the parties and examining the extract of the newspaper article enclosed as Annexure P-2 with the writ petition, this Court is of the opinion that it is a clear case of mistaken identity. The article in question mentions a Scheme by the name of “Atm Nirbhar”, which the respondent No.1/Council has stated it has never launched. The article goes on to mention the name of Mr. Vijay Prakash Pandey, described as the Chairman of the Department of Environment Management Services Committee of the respondent No.1/NDMC. It has been clarified by learned counsel for the respondent No.1/Council that there is no officer by the said name employed by it and nor is there any department in the Council under the nomenclature of Department of Environment Management Services Committee. Lastly,

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respondent No.1/Council has clarified that does not engage rag pickers directly but is associated with an NGO by the name of Chintan for segregation of e-waste/plastic waste, etc. and the Council does not have any direct interface with the rag pickers who are associated with the aforesaid NGO. Further, Rule 15 of the Solid Waste Management, has granted local authorities and others a period of one year from the date of issuance of the notification, to frame the relevant Bye-laws for solid waste management and admittedly, the said period has not yet expired.

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In the aforesaid facts and circumstances, this Court is of the opinion that the present petition is not only devoid of any cause of action against the respondent No.1/Council, it is also pre-mature and is liable to be rejected on both counts. Ordered accordingly. If the petitioner Trust has any grievance against the North Delhi Municipal Corporation, or any other civic authority, it is at liberty to seek its remedies against them, in accordance with law. 16. The writ petition is dismissed, along with the pending applications.

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HIMA KOHLI, J

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OCTOBER 18, 2016 sk/ap

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W.P.(C)7210/2016

All India Kabadi Mazdoor Mahasangh v. New Delhi Municipal Council and Ors.

Case brief

What is this about?

What did the court decide?

All India Kabadi Mazdoor Mahasangh v. New Delhi Municipal Council and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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